Reality Check

Reality Check

Vets the truthfulness of claims and measures the efficacy of public policy

Reality Check: Prop 8 Statements Debunked

California Attorney General Kamala Harris made several claims about Prop 8 and same-sex marriage in California that don’t fully pass the truth test

By Sam Brock
|  Friday, Jun 28, 2013  |  Updated 11:10 AM PDT
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California Attorney General Kamala Harris wasted no time on Wednesday commenting on the Supreme Court rulings, telling Californians that same-sex marriage will resume in a matter of days or weeks. That statement might be true, or it might not, depending on where you live. Sam Brock reports.

California Attorney General Kamala Harris wasted no time on Wednesday commenting on the Supreme Court rulings, telling Californians that same-sex marriage will resume in a matter of days or weeks. That statement might be true, or it might not, depending on where you live. Sam Brock reports.

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The smoke hasn’t quite cleared yet from this week’s Supreme Court rulings on marriage equality issues, but that hasn’t stopped high-ranking state officials from making sweeping statements about the rulings’ impact.

California Attorney General Kamala Harris made no attempt at concealing her enthusiasm at a press conference shortly after the court handed down its decisions, telling reporters with a smile and a laugh, “I’m feeling pretty good.”

And for champions of marriage equality rights, this week has undoubtedly been historic.

The Supreme Court overturned the federal definition of marriage as exclusively a union between a man and woman, and also dismissed Prop 8 on procedural grounds, opening up the door for same-sex marriage to resume in California.

Harris, however, started her press conference by hovering into territory thus far uncovered by the country’s highest court.

“The United States Supreme Court today made clear that Proposition 8 is unconstitutional,” Harris said. “Today the United States Supreme Court made a ruling based on the arguments we have been making all along: The Proponents of Proposition 8 did not have standing.”

The latter portion of this statement is correct. The Supreme Court ruled that proponents of Prop 8 lacked ‘standing’ on the basis that an advocacy group cannot defend a state law in court after the state’s leading officials decline to do so.

California Governor Jerry Brown and Ms. Harris refused to defend Prop 8 at the very outset of the legal process.

The first part of the attorney general’s statement, however, is flatly untrue.

In its Prop 8 ruling, the Supreme Court justices did anything but consider the constitutionality of Prop 8, opting instead to cite a lack of standing and allow the process to play out in the lower courts and in the so-called court of public opinion.

“In the Prop 8 case, the Court decided not to get to the real question of whether there’s a constitutional right to gay marriage,” said Bradley Joondeph, a constitutional law professor at Santa Clara Law School.

He continued, “The whole question of whether a state, as a matter of state law, can discriminate between same-sex and opposite-sex couples for purposes of marriage remains quite open.”

The court’s decision to “skip” the heart of the Prop 8 debate, as Joondeph characterized the ruling, created a pathway for other states to continue defining marriage as they choose.

Later in the same press conference, Harris told the media members present that same-sex marriages will resume in California in a matter of days or weeks, as soon as the Ninth Circuit Court of Appeals lifts its stay (the Ninth Circuit order was vacated by the Supreme Court’s ruling).

“The 58 counties of the state of California must abide by the ruling of Vaughn Walker, from the District Court, when the stay is lifted and must commence [same-sex] marriages in California,” Harris said.

That ruling, which was issued in 2010 and now becomes the law of the state, declared Proposition 8 unconstitutional on the basis that it denies equal protection and due process afforded all Americans by the Constitution.

But here’s where the matter gets confusing: The case before Judge Walker was not a class action lawsuit, and it was not filed on behalf of all same-sex couples.

On the contrary, the suit incorporated only two couples as plaintiffs and cited two specific counties, Los Angeles and Alameda, as defendants.

Thus, questions arise as to whether Judge Walker’s decision applies to just the two couples, to only the two counties, or to the entire state of California and all its citizens and counties.

“This is the next big question in California,” said Jane Schacter, a constitutional law professor at Stanford Law School who has been tracking the marriage equality movement since its very inception.

“I think what’s going to happen is there are going to be some conservative parts of the state, like Imperial County, which tried to get involved in the Prop 8 litigation on its way to the Supreme Court, where the clerks are going to say, ‘I’m not issuing a license, I don’t think Judge Walker had the authority to tell me to do that.’”

Harris’ order that all 58 counties must abide by Judge Walker’s 2010 ruling will become the law of the state, once the stay is lifted. But the legal soundness of that order may be contested in court, and is not necessarily resolved.

“If a county official decides that [the order] is unlawful, that the attorney general lacks the authority to do that or that the District Court opinion was incorrect, a county official could refuse to obey that order and refuse to issue a marriage license, and now we’re back in district court,” said Joondeph.

NBC Bay Area contacted several conservative-leaning counties about their intention of issuing same-sex marriage licenses, once the stay is lifted, and all said they would follow state law.

Those counties include Riverside, Orange, San Bernardino, Fresno, Sacramento, Kern, Stanislaus and Tulare counties.

The only locality that left some wiggle room for filing a legal challenge was Imperial County.

Imperial County Clerk and Recorder Chuck Storey told NBC Bay Area that he’s not “looking at the attorney general’s order at this moment,” but he plans to give it closer scrutiny.

Storey said “we don’t have a lot of people affected here” by marriage equality issues, but that the county does plan to comply with the law once the stay is lifted.

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